Com. v. Nifas, R. ( 2017 )

J-S59038-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
v.
RASHEEN NIFAS
Appellant No. 3395 EDA 2016
Appeal from the PCRA Order October 5, 2016
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-1004371-1991
BEFORE: BENDER, P.J.E., OTT, and FITZGERALD,* JJ.
MEMORANDUM BY FITZGERALD, J.: FILED OCTOBER 25, 2017
Appellant, Rasheen Nifas, appeals pro se from the order entered in the
Philadelphia County Court of Common Pleas denying his second Post
Conviction Relief Act1 (“PCRA”) petition as untimely. Appellant argues the
PCRA’s newly discovered facts and governmental interference exceptions
excuse the untimeliness of his petition. We affirm.
On February 18, 1993, a jury convicted Appellant of first-degree
murder2 and related offenses. The trial court subsequently sentenced
Appellant on October 4, 1994, to life imprisonment, with concurrent terms of
incarceration for the remaining convictions. Appellant timely appealed, and
* Former Justice specially assigned to the Superior Court.
1 42 Pa.C.S. §§ 9541-9546.
2 18 Pa.C.S. § 2502(a).
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this Court affirmed his judgment of sentence on March 29, 1996. Appellant
did not file a petition for allowance of appeal to our Supreme Court.
Appellant timely filed his first PCRA petition pro se on November 18,
1996. The PCRA court appointed counsel, who subsequently filed a “no-
merit” letter and petition to withdraw. On September 24, 1999, the PCRA
court ultimately issued notice of its intent to dismiss Appellant’s petition
without a hearing. Appellant did not respond, and the PCRA court dismissed
his petition on October 26, 1999. Appellant appealed to this Court;
however, his appeal was dismissed on August 10, 2000, for failure to file a
brief. Appellant filed a petition for reconsideration, which this Court denied.
Appellant filed his current PCRA petition pro se on May 20, 2015. The
PCRA court issued notice of its intent to dismiss the petition without a
hearing pursuant to Pa.R.Crim.P. 907, and denied the petition as untimely
on October 5, 2016. Appellant timely appealed on October 21, 2016.
“Our standard of review of a PCRA court’s dismissal of a PCRA petition
is limited to examining whether the PCRA court’s determination is supported
by the evidence of record and free of legal error.” Commonwealth v.
Wilson, 824 A.2d 331, 333 (Pa. Super. 2003) (en banc) (citation omitted).
As our Supreme Court has explained:
the PCRA timeliness requirements are jurisdictional in
nature and, accordingly, a PCRA court is precluded from
considering untimely PCRA petitions. We have also held
that even where the PCRA court does not address the
applicability of the PCRA timing mandate, th[e] Court will
consider the issue sua sponte, as it is a threshold question
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implicating our subject matter jurisdiction and ability to
grant the requested relief.
Commonwealth v. Whitney, 817 A.2d 473, 477-78 (Pa. 2003) (citations
omitted).
A PCRA petition “must normally be filed within one year of the date the
judgment becomes final . . . unless one of the exceptions in § 9545(b)(1)(i)-
(iii) applies and the petition is filed within 60 days of the date the claim
could have been presented.” Commonwealth v. Copenhefer, 941 A.2d
646, 648 (Pa. 2007) (some citations and footnote omitted). Pursuant to 42
Pa.C.S. § 9545(b)(3), “[a] judgment becomes final at the conclusion of
direct review by this Court or the United States Supreme Court, or at the
expiration of the time seeking such review.” Commonwealth v. Jones, 54
A.3d 14, 17 (Pa. 2012) (citations omitted).
When a petition is filed outside the one-year time limit, the petitioner
must plead and prove the applicability of one of the three exceptions to the
PCRA timeliness requirements. Commonwealth v. Johnston, 42 A.3d
1120, 1126 (Pa. Super. 2012) (“If the petition is determined to be untimely,
and no exception has been pled and proven, the petition must be dismissed
without a hearing because Pennsylvania courts are without jurisdiction to
consider the merits of the petition.” (citation omitted)). The three
exceptions to the general one-year time limitation are:
(i) the failure to raise the claim previously was the result
of interference by government officials with the
presentation of the claim in violation of the Constitution or
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laws of this Commonwealth or the Constitution or laws of
the United States;
(ii) the facts upon which the claim is predicated were
unknown to the petitioner and could not have been
ascertained by the exercise of due diligence; or
(iii) the right asserted is a constitutional right that was
recognized by the Supreme Court of the United States or
the Supreme Court of Pennsylvania after the time period
provided in this section and has been held by that court to
apply retroactively.
42 Pa.C.S. § 9545(b)(1)(i)-(iii).
Instantly, Appellant’s judgment of sentence became final on April 28,
1996, thirty days after this Court affirmed his judgment of sentence.
Therefore, his current petition, which was filed more than nineteen years
later on May 20, 2015, is facially untimely. Although Appellant alleges an
affidavit from his co-defendant indicating Appellant was not present during
the crime satisfies the newly discovered facts exception, Appellant has not
proven that these facts were unknown to him at the time of his trial or that
they could not have been discovered through due diligence. See id. §
9545(b)(1)(ii). In fact, the co-defendant’s affidavit states he told Appellant’s
trial counsel of this exculpatory information in 1992, prior to Appellant’s
trial. Furthermore, Appellant asserts the governmental interference
exception applies because the Commonwealth withheld exculpatory
information that was discovered during his co-defendant’s trial.
Nevertheless, Appellant again failed to prove he exercised due diligence in
obtaining the alleged exculpatory information when his co-defendant was
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tried before Appellant and Appellant could have requested a copy of the
transcripts from his co-defendant’s trial prior to his own trial. See id. §
9545(b)(1)(i). Therefore, Appellant has failed to prove any of the statutory
exceptions to the PCRA’s timeliness requirement. See id. § 9545(b)(1)(i)-
(iii). Accordingly, the PCRA court lacked jurisdiction to consider the merits
of Appellant’s claims, and we affirm the dismissal of Appellant’s untimely
PCRA petition. See Johnston, 42 A.3d at 1126.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/25/2017
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